R. v. Pong Date:, 2016 BCPC 327

Citation: R. v. Pong Date: 20161004 2016 BCPC 327 File No: 243239-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTINA MEI KEE PONG CORRIGENDUM EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: G. Proulx, Q.C Counsel for the Defendant: T. Mennie, Articled Student

Place of Hearing: Vancouver , B.C. Date of Hearing: October 4, 2016 Date of Judgment: October 4, 2016 A Corrigendum was released by the Court on October 31, 2016. The corrections have been made to the text, and the Corrigendum is appended to this document. [ 1 ] THE COURT: In cases where a treasured life is lost, those left to grieve navigate through many foreign waters. One such waterway is the criminal justice system.

I say "foreign" because most have never interacted with the criminal justice system and their expectations are largely driven by sources that are not reflective of reality. [ 2 ] Expectations are typically that, the sentence imposed reflects the value of human life or because a life is lost, that the person responsible must be harshly sentenced or because those left behind are sentenced to a life of hardship, so, too, should the person responsible. [ 3 ] As understandable as these thoughts and emotions are, they are misguided.

The purpose of sentencing is not to exact pain or based on an eye-for-an-eye philosophy, nor is the sentence that is imposed intended to reflect the value of a life lost, of the spirit lost, or of the grieving suffered. No sentence that I impose will ever adequately reflect the value of Robert Ingram, the husband, the father, the grandfather, the great grandfather, and friend, nor will any sentence imposed ever ameliorate the pain and suffering endured by this tragic and substantial loss. Background [ 4 ] February 8, 2016, was a sunny day. At about 9:00 a.m., Robert Ingram was out for his daily walk.

While walking northbound in the east crosswalk of 49th Avenue at Fraser, Mr. Ingram was struck by a left-turning vehicle driven by the accused, Ms. Pong. The impact caused Mr. Ingram to hit the windscreen and fall to the asphalt surface. By all accounts, he was immediately rendered unconscious and peaceful. Mr. Ingram was transported to hospital and, despite medical efforts, he passed away several hours later. When Mr. Ingram passed, he was with family and though unconscious I am certain he knew they were present. [ 5 ] With respect to how the accident occurred, Ms.

Pong was travelling south on Fraser Street and went to make a left turn eastbound onto 49th Avenue. Ms. Pong had not been drinking. She was not speeding, nor was she distracted by an electronic device. She simply did not see Mr. Ingram. It is suspected that her front vehicle pillar likely contributed to an obstruction of her view. Simply stated, it was a momentary lack of attention with tragic consequences. Ms. Pong immediately stopped and cooperated with the authorities. Victim Impact Statements [ 6 ] I have carefully read the statements.

It is clear that Robert Ingram was dearly loved and he gave love, that the loss of Robert Ingram is deep, and that the sense of grieving has been debilitating and brought about physical consequences. Please be aware that my task today is performed with this understanding. Sentencing Positions [ 7 ] The Crown and defence agree that a fit and appropriate sentence is a one-year driving prohibition, a $1,000 fine, and a victim fine surcharge. [ 8 ] When the Crown and defence agree on a sentencing position, it is frequently referred to as a joint submission.

When sentencing courts receive a joint submission, those courts are directed by higher courts to give joint submissions substantial deference. [ 9 ] Currently, there is judicial debate as to the test for determining if a joint submission is meritorious of deference; see R. v. Anthony-Cook , 2015 BCCA 22 , leave granted to Supreme Court of Canada, 2015/09/10. The two positions are, is the proposed sentence fit or does the proposed sentence undermine the public's confidence in the administration of justice? Accused Background [ 10 ] Ms. Pong is 73.

She does not have a criminal record and her driving record is minimal and dated. She has the support of her family and, since the accident, Ms. Pong has sold her car and attended counselling. Ms. Pong provided the court with her written comments and they are filed as Exhibit 8. These comments demonstrate remorse and a desire to apologize. She expresses she will carry the pain of knowing the damage that her momentary inattentiveness has caused.

Her words clearly show she understands the loss she caused. [ 11 ] When a court imposes a sentence, the court must consider the purpose and principles of sentencing; that is, what is the court trying to achieve by imposing the sentence selected? In this case, given the amount of drivers and the daily incidents that occur, deterrence and denunciation is important. [ 12 ] In addition, any sentence imposed by a court must be proportional to the seriousness of the offence and the degree of the offender's responsibility. In the instant case, Ms. Pong is not charged with a criminal offence.

Rather, she is charged with a regulatory offence. This distinction is significant.

[13] Those who commit criminal offences are those who have transcended society's most fundamental and basic principles. Suchconduct is viewed seriously and carries substantial consequences such as the imprint of a criminal record and the risk of incarceration. Incontrast, regulatory offences are offences against laws that are designed to ensure the orderly movement and conduct of society.

Breaches of these laws do not carry the mark and impact that a criminal record does and, typically, one's liberty interest is not triggeredupon conviction. [14] Despite my comments, I appreciate that not paying attention at those times where heightened attention is demanded is serious. The degree of responsibility, although the events were not planned, is entirely the fault of Ms. Pong. Range of Sentences [15] Counsel presented the court with the following authorities: R. v. Gordon, November 25, 1991, North Van Provincial CourtRegistry, 22591; R. v. Randhawa, 2011 BCPC 372 , 2011 BCPC 0372; R. v.

Uphill, 2007 BCPC 478 , 2007 BCPC0478; R. v. Cameron, 2004 BCPC 500 , 2004 BCPC 0500; R. v. Chisholm, 2009 BCPC 23; and Appendix C of R. v. McLaren,2014 BCSC 982. [16] A review of the cases, and after considering all of the jurisprudence, I find that the proposed sentence is within the rangeavailable. Aggravating and Mitigating Factors [17] I find the following to be aggravating. [18] The lack of attention occurred at a time where a heightened degree of attention is demanded. This was not a long stretch ofstraight highway.

Rather, it was an intersection within our city where there were pedestrians and traffic and such pedestrians and trafficare always persistent. Mitigation [19] In this case, there was an early guilty plea. Early guilty pleas are substantially mitigating.

They are substantially mitigating fora number of reasons: 1. they avoid prolonging the pain and suffering associated with attending by family and friends at a case of this nature; 2. it is an acknowledgment of wrongdoing by the wrongdoer; 3. it is an expression of remorse; and 4. it is a waiver of a fundamental constitutional right within our society and that constitutional right is the right to demand that thestate prove the case against the accused beyond a reasonable doubt. Conclusion [20] Robert Ingram was and is a cherished individual.

He would have taken warmth in his family's support and their efforts duringthe difficult process. I wish that the sentence that I impose today would ease the pain of all and I know that this will not happen. Perhaps time will dull the sense of loss. [21] After considering all of the factors and the submissions of counsel, I find that the proposed sentence is fit and appropriate andthat it would not undermine the public's confidence in the administration of justice.

Accordingly, I impose a $1,000 fine, a one-yeardriving prohibition, and the victim fine surcharge. [22] The one-year driving prohibition is pursuant to s. 98 of the Motor Vehicle Act and that prohibition takes effect today and is inplace every day thereafter until such time that one year has expired. [23] Mr. Mennie, does your client need time to pay the $1,000 fine? [24] MR. MENNIE: No, she does not, Your Honour. [25] THE COURT: All right.

Then the $1,000 fine is payable forthwith. [26] There is also a -- a percentage on the victim fine surcharges of 15 percent, Madam Registrar? [27] So there is a 15-percent victim fine surcharge. Those fines will be payable forthwith. [28] Mr. Mennie, you will need to take your client to the second floor, the court registry. [29] It will take a period of time for these documents to be prepared and then you will sign them and make your payments there. Doyou have your driver's licence with you today, madam? [30] THE ACCUSED: Yes. [31] THE COURT: If you would just surrender it to Mr.

Sheriff, please. [REASONS FOR SENTENCE CONCLUDED]

CORRIGENDUM – Released October 31, 2016 In my Reasons for Sentence dated October 4, 2016, the following change has been made: [1] In the last sentence of page 2, at paragraph 4, the name “Bruce” has been removed and the word “Mr.” has been inserted. The sentence will now read: When Mr. Ingram passed, he was with family and though unconscious I am certain he knew they were present.